Citation Nr: 1817234
Decision Date: 03/19/18 Archive Date: 03/30/18
DOCKET NO. 09-11 477 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California
THE ISSUE
Entitlement to service connection for hypertension, to include as due to herbicide exposure.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
E. Jones III, Associate Counsel
INTRODUCTION
The Veteran served on active duty in the United States Navy from July 1965 to April 1971.
This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2007 rating decision of the San Diego, California, Regional Office (RO) of the Department of Veterans Affairs (VA). Jurisdiction over the case has since transferred to the Los Angeles, California, RO.
In July 2015, the Veteran testified at a Board hearing; a transcript of the hearing is associated with the claims file.
This case was previously before the board in November 2015. At that that time, the Board remanded the case for further development.
In September 2016, the Veteran submitted a statement which included a request that the claim be expedited to his age and health condition. As such it is considered a motion to Advance on the Docket (AOD). Appeals must be considered in docket number order, but may be advanced if sufficient cause is shown. See 38 U.S.C. § 7107 (a)(2) (2012); 38 C.F.R. § 20.900 (c) (2017). Sufficient cause includes advanced age (defined as 75 years or more), serious illness, severe financial hardship, or administrative error resulting in a significant delay. Any motion for advancement should be supported by pertinent documentation. The Board has considered the Veteran's motion and finds that the Veteran has not submitted sufficient evidence to demonstrate the necessity of an AOD. Rather the record reflects he is not yet 75 years old and while he clearly has health issues, there is no indication of serious illness as contemplated by38 C.F.R. § 20.900 (c)(1). due to financial hardship and the motion for AOD is denied.
The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required.
REMAND
This case requires remand for an addendum opinion and further development of the record.
The Veteran contends that his hypertension was caused by service, caused by herbicide exposure during service, or caused by diabetes mellitus, which he has argued in a separate claim is caused by herbicide exposure during service.
In January 2018, at the direction of the Board, the VA examiner rendered opinions as to whether it is at least as likely as not that the Veteran's hypertension (i) was incurred in or caused by service, including Agent Orange exposure, or (ii) was caused or aggravated by the Veteran's diabetes mellitus.
Regarding the first of these opinions, the Veteran's representative points in its February 2018 brief to National Academy of Sciences 2010 and 2012 updates suggesting a possible association between exposure to Agent Orange and hypertension. An addendum opinion is needed to address this evidence.
Regarding the second opinion, the VA examiner stated that the Veteran's diagnosis of hypertension four months after his diagnosis of diabetes mellitus "suggest[s] that the hypertension condition in relation to the [diabetes mellitus] condition are independent from each other rather than a cause." The Board requires further clarification of this statement to understand how diagnoses at different times preclude causation of one condition by another.
At the hearing, the Veteran testified that he was treated for hypertension at Kaiser Permanente prior to 2007. These records are not yet a part of the electronic file.
Accordingly, the case is REMANDED for the following actions:
1. Obtain all VA treatment records that are not currently in the claims file. After contacting the Veteran and/or his representative to obtain the appropriate authorizations and inquire about any outstanding relevant medical records not currently in the file, request treatment records from any sources the Veteran identifies, including Kaiser Permanente. If any records sought are not obtained, a written statement to that effect should be incorporated into the record.
2. After any additional records have been included in the claims file (to the extent they are available), obtain an addendum opinion from the January 2018 VA examiner, or, if unavailable, another suitably qualified examiner. A new VA examination is not necessary unless the VA examiner finds one is needed. The examiner should review the entire claims file, including this remand and the February 2018 appellate brief. The examiner should:
(a) Comment on National Academy of Sciences 2010 and 2012 updates regarding possible causation of hypertension by Agent Orange exposure, and in light of this evidence, render an opinion as to whether it is at least as likely as not that the Veteran's hypertension was incurred in or caused by service, including herbicide agent exposure. The examiner should address this likelihood without regard to the RO's determination as to whether or not the Veteran was exposed to herbicide agents; and
(b) Clarify the January 2018 statement that the Veteran's diagnosis of hypertension four months after his diagnosis of diabetes mellitus "suggest[s] that the hypertension condition in relation to the [diabetes mellitus] condition are independent from each other rather than a cause," or otherwise reformulate and provide adequate rationale for an opinion as to whether it is at least as likely as not that the Veteran's hypertension was caused by the Veteran's diabetes mellitus.
3. After ensuring that the requested actions are completed, VA should conduct any other development actions deemed warranted and readjudicate the claim on appeal. If the benefit sought is not fully granted, the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board for appellate review.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).
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H. SEESEL
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).